2014-00172437-CU-BC

Gordon Bones vs. American River Developement, Inc.

Nature of Proceeding: Motion for Reconsideration

Filed By: Bones, Gordon G.

Self-represented Plaintiffs/Cross-Defendants Gordon Bones and Bones Law Firms’ (“Bones”) Motion for Reconsideration of its Order Entered Dec. 6, 2017, Denying the Motion to Set Aside the Entry of Default of June 19, 2017 is DENIED.

The Court will not consider Bones’ Motion for Appointment of a Discovery Referee, as the clerk’s entry of default on June 19, 2017, cuts off the defendant’s right to take further affirmative steps such as filing a pleading or motion, and the defendant is not entitled to notices or service of pleadings or papers. (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 152, p. 569; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.)

Timeliness

The order for which plaintiffs/cross-defendants seeks reconsideration was entered Dec. 6, 2017. Plaintiff had 10 days following the court’s order granting the motion for award of attorney’s fees to file a motion to reconsider. The Court finds that the motion was timely filed, as Bones’ address is out-of-state.

Code of Civil Procedure § 1008 states in relevant part:

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days…make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made

before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Code of Civil Procedure, sec. 1008 (a).)

“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Cod e Civ. Proc., § 1008 (e).)

Here, the court in this case issued its tentative ruling on Nov. 30, 2017, and following oral argument on Dec. 1, 2017, took the matter under submission. On Dec. 6, 2017, the Court issued its Ruling on Submitted Matter affirming the tentative ruling.

Therefore, Plaintiff had until December 16, 2017, to file a motion for reconsideration. With 10 additional days for receipt of out-of state mail, under C.C.P., sec. 1005, the motion for reconsideration filed on Dec. 26, 2017 was timely filed.

New Facts, Circumstances or Law

A strict requirement of diligence is applied to the presentation of new facts, circumstances or law. (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.) The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. ( New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)

Here, Bones’ declaration reflects the “new evidence” to be Bones’ health, the death of a friend, the move to Indiana and his wife’s trips to Rome, together with difficulties accessing documents. All of these “new facts” occurred in 2016 and early 2017, and have been previously raised by Bones and considered by the Court.

The “new law” cited by Bones is the case of Rodriguez v. Brill (2015) 234 Cal.App.4th 715, which was published in 2015. This is not “new law” for the purposes of the statute. Indeed, “new law” may consist of appellate court rulings issued since the ruling on the motion to be renewed. See, Phillips v. Sprint PCS (2012) 209 CA4th 758, 768; 2-29 MB Practice Guide: CA Pretrial Civil Procedure 29.11[1].

The Court denies the motion to reconsider.